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Julie A. Gafkay

Julie Gafkay’s Answers

12 total

  • Quitting Job in Michigan and still receive unemployment

    Is it possible to receive unemployment if one quits their job rather than being fired or laid off? I was on salary, then taken off (due to disciplinary action) , and my hours have been drastically reduced. With the decrease in pay I am interes...

    Julie’s Answer

    It is possible to get unemployment if you quit in Michigan. However, the burden is on you, as the employee, to show that you had "good cause attributable to the employer" to quit. That is a difficult, but not impossible, threshold to meet. If your hours and pay were "drastically reduced" as you indicated that is very helpful to show "good cause".

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  • Can a worker in trial period be 1099 contractor?

    Can we treat workers in their first one-three months trial period as 1099 contractors? We switched them to W-2 in 1-3 months. During the trial period, they get overtime pay. These workers are writers using company computers to work on projects ass...

    Julie’s Answer

    Since you are 1099 the individuals during their first 1-3 month period, you are treating those individuals as independent contractors versus employees. As long as the individuals are truly independent contractors, then there is no legal issue with doing so. To be truly an independent contractor, an individual must have control over his or her methods, buy his or her own supplies, and have the liberty to work for others, for instance. If the individual is truly an independent contractor, then you don't have to pay payroll taxes, you don't have to pay worker's compensation, you don't have to pay fringe benefits, and you don't have to pay overtime payments.

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  • Can I file a discrimination lawsuit?

    I was recently terminated from my job based on my prior criminal history. I was working for this company for 6 months. I was never late, never called in sick,and often went above and beyond the required duties for my position. I submitted a resume...

    Julie’s Answer

    If the "past criminal history" only involved misdemeanor arrests, for instance, my opinon is that you may have recourse under Michigan Law. However, if it was a felony arrest or a misdemeanor conviction, I agree that as an at-will state, you must likely have no recourse.

    Under the Elliottt-Larsen Civil Rights Act:

    37.2205a Employer, employment agency, or labor organization; record of information
    regarding misdemeanor arrest, detention, or disposition; failure to recite or acknowledge
    information; “law enforcement agency” defined.
    Sec. 205a. (1) An employer, employment agency, or labor organization, other than a law enforcement
    agency of this state or a political subdivision of this state, shall not in connection with an application for
    employment or membership, or in connection with the terms, conditions, or privileges of employment or
    membership request, make, or maintain a record of information regarding a misdemeanor arrest, detention, or
    disposition where a conviction did not result. A person is not guilty of perjury or otherwise for giving a false
    statement by failing to recite or acknowledge information the person has a civil right to withhold by this
    section. This section does not apply to information relative to a felony charge before conviction or dismissal.

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  • Fired for misconduct, UIA is stating I was terminated for alleged theft.

    I was recently fired from my janitorial job, cleaning our local mall. A few weeks beforehand I had found money on the floor, I picked it up and immediately showed my supervisor who was 5 or 10 feet away from me. All I had to do was hold up the mon...

    Julie’s Answer

    I'm assuming that you either have a notice of determination or (re)determination from the unemployment agency. If so, the back of the notice will explain how to appeal the determination or (re)determination. You need to make sure to appeal within the time limit set forth which is usually 30 days, but the notice will indicate the exact time limit to appeal. You will need to put your social security number, name, date, and briefly indicate why you are appealing; i.e. that you did not engage in misconduct because you did not engage in theft as alleged. If you are appealing a (re)determimation, you will be requesting a hearing with an administrative law judge in your request. Once you submit the appeal by fax or mail, you will get a notice of hearing. You can represent yourself. Unemloyment also has advocates that they can assign you if you cannot afford to hire a private attorney. the employer will have the burden of proof at the hearing to show that you engaged in misconduct which is defined as a deliberate disregard of your employer's interest.

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  • Is it a conflict of interest to continue to do freelance graphic design while working for a company doing similar work?

    I was hired 9 years ago at a newspaper and was upfront about my freelance graphic design business that has been in place since 1993. About 5 years ago, the newspaper I work for decided to open up a "design side business" as a division of the newsp...

    Julie’s Answer

    Currently, the newspaper would most likely not have legal recourse against you for continuing your freelance work since you never agreed to a non-compete agreement. However, unless you are a union employee, as an at-will employee you can be fired in Michigan for any reason, without notice, except for an illegal reason (such as sex, race, age discrimination). In my legal opinion, if an at-will emplolyee, you could be fired for continuing the freelance work if they don't like it and I don't believe that would be illegal. Also, even though you didn't sign an agreement, you are still legally required to keep trade secrets of your employer confidential under the Michgian Uniform Trade Secrets Act.

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  • My former employer refuses to sign a form I need to close out a 403(b) account. The funds are in a Franklin Templeton account.

    I've contacted Franklin Templeton and it's their policy to require the employer to sign off. I've written two letters to my former employer requesting the signature of the appropriate person. I started this process in December 2010. I haven't hear...

    Julie’s Answer

    The legal basis of your complaint, in my opinion, would include a request for injunctive relief. In other words, an Order from the Court requiring your former employer to do something, i.e. give you the document with the required signature so that you transfer the funds.

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  • I believe that due to my being a muslim and choosing to cover my head I was fired. Wwhat can I do?

    I have been working for the same emplyer for the last 7 years. I recently started covering my head with the Hijab. One of the woman I work with was very nasty to me and so I mentioed it to the manager. She was talked to several times but the haras...

    Julie’s Answer

    In Michigan, the Elliott-Larsen Civil Rights Act protects employees from discrimination based on religion. In addition, your religion must be accommodated as long as it does not pose an undue hardship on the employer and you are still able to perform the essential functions of your job. I would recommend requesting the accommodation for your religion of covering your head, if the employer refuses to allow you to do that, contact the Michigan Department of Civil Rights.

    This advice does not create an attorney-client relationship and is based solely on the limited information provided. It is recommended that you seek the advice of an attorney for legal advice.

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  • Is there a legal time limit on the length of time a person can be suspended from a job w/o pay ?

    suspended from my job 10 days ago, 1 meeting w/ HR ..still waiting for outcome

    Julie’s Answer

    In my legal opinion, based on the information provided, I do not know of any employment statute that limits the length of time a person can be suspended from a job w/o pay. However, if you are a union employee there may be a limit under the CBA and the language of that agreement would control. If you are in a union, I would look to that and contact your union rep. If you are not in a union, again there is no statute that I know of governing the length of a suspension w/o pay if you are working for a private employer. If you are employed with a public employer, the employer is required to provide you with minimum procedural due process rights under the constitution - notice and an opportunity to be heard. Finally, if you are not being paid, you may want to consider filing an unemployment claim.

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  • Can a hospital deny me employment on the basis of the medications I take for my fibromyalgia?

    I have been a registered nurse for 13 years. I have been taking valium and darvocet to help with neck pain and spasms related to degenerative arthrititis and fibromyalgia for about 5 years. During that time I have employed at various hospitals wit...

    Julie’s Answer

    In my legal opinion, based on the information provided,you may have a claim under the Americans with Disabilities Act or ADA. The employer's defense to an ADA claim may be that you are allegedly a direct threat to yourself or others as a result of that medication. However, if your doctor releases you to work without restrictions even with the medications being taken and it does not interfere with your ability to perform the essential functions of your job, I believe the employer would have a difficult time showing that. I recommend that you contact an attorney as soon as possible. In order to file an ADA claim, you will have to file a charge of discrimination with the Equal Employment Opportunity Commission first. The EEOC will investigate your claim. You can file an EEOC charge without an attorney. Once you get a right to sue letter from the EEOC you can file an action in federal court.

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  • Workers Compensation case pending

    Individual gets hurt on the job, returns to work 17 months later with restriction, physician notes MMI, but has not assigned % of permanent partial disability, as individual still being treated, follow up, with now some secondary medical issues re...

    Julie’s Answer

    In Michigan, even if you are not a member of a union, you can bring a public policy wrongful discharge claim in Court grounded on the anti-retaliation provision in the worker's compensation act. If you believe that was the reason you were terminated, you do not need to re-open your worker's comp claim, you would need to file in Circuit Court in the county where you were employed within 3 years, unless you agreed to a shorter time period.

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